American Lessons: Implementing Fair Use in Australia

(2014) 24 Australian Intellectual Property Journal (AIPJ) 192

10 Pages Posted: 26 Jul 2014

Date Written: June 25, 2014


This article discusses the recent Australian Law Reform Commission report proposing a fair use defense to copyright infringement in Australia. It examines the experience of fair use cases in the United States and draws three lessons from the jurisprudential history. First, it suggests that decisions in fair use can only really be understood within a theoretical framework, and that unless we import that framework into Australia any fair use defense will not work as expected. Secondly, the article argues that the area where fair use jurisprudence appears to be most helpful, in dealing with “transformative” works, is actually much more limited than outsiders to the US would expect. And finally, it suggests that any implementation of a factor related to market substitution should take account of the gaming of the system that has gone on in the US.

Keywords: copyright, fair use

Suggested Citation

Hunter, Dan, American Lessons: Implementing Fair Use in Australia (June 25, 2014). (2014) 24 Australian Intellectual Property Journal (AIPJ) 192. Available at SSRN:

Dan Hunter (Contact Author)

Swinburne Law School ( email )

Cnr Wakefield and William Streets, Hawthorn Victor
3122 Victoria, Victoria 3122

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